CLAIMANTS-APPELLEES’ RESPONSE BRIEF

No. 20-1958

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

AMANDA JANE WOLFE, PETER BOERSCHINGER,

Claimants-Appellees

v.

DENIS MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellant

Appeal from the United States Court of Appeals

for Veterans Claims in Case No. 18-6091

CLAIMANTS-APPELLEES’ RESPONSE BRIEF

Barton F. Stichman Renee Burbank NATIONAL VETERANS LEGAL

SERVICES PROGRAM 1600 K Street, N.W. Suite 500 Washington, DC 20006 (202) 621-5677

Mark B. Blocker Kara L. McCall SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 (312) 853-7000 Counsel for Claimants-Appellees

July 13, 2021

Case: 20-1958 Document: 37 Page: 1 Filed: 07/13/2021

CERTIFICATE OF INTEREST

Counsel for Claimants-Appellees certifies the following:

1. The full names of all entities represented by the undersigned counsel in this case are:

Amanda Jane Wolfe; Peter Boerschinger.

2. The full names of all real entities in interest for the parties are:

Not Applicable.

3. The full names of all parent corporations for the entities and all publicly held companies that own 10% or more stock in the entities are:

Not Applicable.

4. The names of all law firms, partners, and associates that (a) appeared for the entities in the originating court or agency or (b) are expected to appear in this court for the entities are:

Sidley Austin LLP: Mark B. Blocker, Kara L. McCall, Lindsey K. Eastman (withdrawn), Eric T. O’Brien (withdrawn); Emily Wexler and

National Veterans Legal Services Program: Barton F. Stichman, Alessandra Venuti, Renee Burbank, John Niles (withdrawn), Patrick Berkshire (withdrawn)

5. The case titles and numbers of any case known to be pending in this court or any other court or agency that will directly affect or be directly affected by this court’s decision in the pending appeal is:

None.


6. Provide any information required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases) and 26.1(c) (bankruptcy case debtors and trustees).

None.

Dated: July 13, 2021 /s/ Mark B. Blocker Mark B. Blocker SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 (312) 853-7000 Counsel for Claimants-Appellees


i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF RELATED CASES ..................................................................... 1

COUNTERSTATEMENT OF THE ISSUES............................................................ 1

STATEMENT OF THE CASE .................................................................................. 4

I. BACKGROUND ............................................................................................. 4

A. Veterans Millennium Health Care and Benefits Act ............. 4

B. Emergency Care Fairness Act ................................................ 6

C. Staab v. McDonald .................................................................. 8

D. The VA’s Short-Lived Appeal of Staab ................................... 9

E. The VA’s Effort to Circumvent Staab. .................................. 10

1. Moratorium ...............................................................................10

2. Interim Final Rule .....................................................................11

3. Refusal to Make Payment .........................................................13

4. Misrepresentations ....................................................................14

II. PROCEEDINGS BELOW ............................................................................17

A. The VA’s Admission of Wrongdoing ...................................... 17

B. The VA’s Defense of the Interim Final Rule ........................ 19

C. The Decision Below ............................................................... 21

D. Continued Misrepresentations ............................................. 24

E. Continued Refusal to Pay ..................................................... 25

SUMMARY OF ARGUMENT ...............................................................................26

ARGUMENT ...........................................................................................................28


ii

I. THE VETERANS COURT APPROPRIATELY ISSUED A WRIT OF MANDAMUS. ........................................................................................28

A. The Veterans Court Properly Asserted Jurisdiction. ........... 30

1. The Class Was Within The Prospective Jurisdiction Of The Veterans Court. ..................................................................30

2. The Writ Was In Aid Of Prospective Jurisdiction. ...................33

3. The Writ Was In Aid Of Prior Jurisdiction...............................40

4. The Writ Was An Appropriate Use Of The Court’s Authority To Hear Class Actions. .............................................41

5. The Writ Was Necessary To Correct A Clear Abuse Of Discretion. .................................................................................46

6. The Writ Did Not Interfere With The Jurisdiction Of Any Other Tribunal. ..........................................................................47

B. The Class Was Clearly Entitled To A Writ .......................... 52

C. The Class Lacked An Alternative Remedy ........................... 59

II. THE VETERANS COURT DID NOT ABUSE ITS DISCRETION BY CERTIFYING THE CLASS. ..................................................................63

A. Equitable Tolling Justifies The Court’s Decision to Order Re-adjudication Of All Claims.................................... 63

B. Undecided Claims Are Within The Prospective Jurisdiction Of The Veterans Court. .................................... 65

C. The Class Seeks Common Relief For A Common Injury. ..... 66

CONCLUSION ........................................................................................................67

CERTIFICATE OF COMPLIANCE .......................................................................68

CERTIFICATE OF SERVICE ................................................................................69


iii

TABLE OF AUTHORITIES Cases Page(s)

American Legion v. Nicholson, 21 Vet. App. 1 (2007) ......................................................................................... 50

Bankers Life & Cas. Co. v. Holland, 346 U.S. 379 (1953) ...................................................................................... 47, 62

Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004) .......................................................................... 58

Boggs v. West, 188 F.3d 1335 (Fed. Cir. 1999) .............................................................. 55, 63, 65

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ............................................................................................ 53

Bowen v. City of New York, 476 U.S. 467 (1986) ............................................................................................ 61

Bright v. U.S., 603 F.3d 1273 (Fed. Cir. 2010) .......................................................................... 64

Brown v. Gardner, 513 U.S. 115 (1994) ............................................................................................ 44

Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367 (2004) ................................................................................ 29, 46, 47

Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) ................................................................................ 22, 54, 58

Clinton v. Goldsmith, 526 U.S. 529 (1999) ...................................................................................... 40, 62

Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) .......................................................................... 65

Cox v. West, 149 F.3d 1360 (Fed. Cir. 1988) .......................................................................... 28


iv

Dacoron v. Brown, 4 Vet. App. 115 (1993) ....................................................................................... 50

De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212 (1945) ............................................................................................ 47

Delisle v. McDonald, 789 F.3d 1372 (Fed. Cir. 2015) .......................................................................... 38

Erspamer v. Derwinski, 1 Vet. App. 3 (1990) ..................................................................................... 32, 37

FTC v. Dean Foods Co., 384 U.S. 597 (1966) ............................................................................................ 30

GHS HMO, Inc. v. United States, 536 F.3d 1293 (Fed. Cir. 2008) .......................................................................... 53

Giusti-Bravo v. U.S. Veterans Admin., 853 F. Supp. 34 (D.P.R. 1993) ........................................................................... 46

Gonzales v. Oregon, 546 U.S. 243 (2006) ............................................................................................ 53

Heath v. West, 11 Vet. App. 400 (1998) ............................................................................... 35, 36

Heckler v. Ringer, 466 U.S. 602 (1984) ............................................................................................ 61

Henderson v. Shinseki, 562 U.S. 428 (2011) ............................................................................................ 63

Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638 (D.C. Cir. 2000) ............................................................................ 54

In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020) .......................................................................... 62

In re Innotron Diagnostics, 800 F.2d 1077 (Fed. Cir. 1986) .......................................................................... 35


v

In re Tennant, 359 F.3d 523 (D.C. Cir. 2004) ................................................................ 31, 32, 65

In re Wick, 40 F.3d 367 (Fed. Cir. 1994) .............................................................................. 33

Iwata v. Intel Corp., 349 F. Supp. 2d 135 (D. Mass. 2004) ................................................................. 57

Johnson v. Robison, 415 U.S. 361 (1974) ............................................................................................ 46

Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005) .......................................................................... 65

Kerr v. U.S. Dist. Ct. for N.D. Cal., 426 U.S. 394 (1976) ............................................................................................ 28

La Buy v. Howes Leather Co., 352 U.S. 249 (1957) ............................................................................................ 47

Lamb v. Principi, 284 F.3d 1378 (Fed. Cir. 2002) .......................................................................... 60

Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998) ...................................................................... 44, 60

Lifestar Ambulance Service Inc. v. United States, 365 F.3d 1293 (11th Cir. 2004) .......................................................................... 61

Martin v. O’Rourke, 891 F.3d 1338 (Fed. Cir. 2018) .............................................................. 43, 44, 45

McCarthy v. Madigan, 503 U.S. 146-149 (1992) .............................................................................. 61, 62

Mid Continent Nail Corp. v. United States, 846 F.3d 1364 (Fed. Cir. 2017) .......................................................................... 53

Mistick PBT v. Chao, 440 F.3d 503 (D.C. Cir. 2006) ............................................................................ 43


vi

Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017) ...................................................................passim

Moore v. Derwinski, 1 Vet. App. 83 (1990) ......................................................................................... 33

Mylan Labs Ltd. v. Janssen Pharmaceutica, N.V., 989 F.3d 1375 (Fed. Cir. 2021) .................................................................... 32, 65

Nehmer v. U.S. Veterans’ Admin., 118 F.R.D. 113 (N.D. Cal. 1987) ........................................................................ 46

Parker v. OPM, 974 F.2d 164 (Fed. Cir. 1992) ............................................................................ 54

Platt v. 3M, 376 U.S. 240 (1964) ................................................................................ 36, 51, 52

Preminger v. Sec’y of Veterans Affairs, 632 F.3d 1345 (Fed. Cir. 2011) .................................................................... 48, 50

Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) .......................................................................... 57

Roche v. Evaporated Milk Ass’n, 319 U. S. 21 (1943) ....................................................................................... 30, 62

SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018) ........................................................................................ 54

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ............................................................................................ 62

Skaar v. Wilkie, 32 Vet. App. 156 (2019) ......................................................................... 63, 64, 65

Staab v. McDonald, 28 Vet. App. 50 (2016) ................................................................................passim

Staab v. Shulkin, No. 14-957 (Vet. App. Ct.) ............................................................................. 9, 10


vii

Staab v. Shulkin, No. 16-2671, ECF No. 62 (Fed. Cir.) ................................................................. 10

Taylor v. McDonough, --- F.4th ---, No. 2019-211, 2021 WL 2672307 (Fed. Cir. June 30, 2021) .. 45, 46

United States v. Mead Corp., 533 U.S. 218 (2001) ............................................................................................ 53

U.S. ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974) ............................................................................. 41

United States v. Szabo, 760 F.3d 997 (9th Cir. 2014) .............................................................................. 48

United States v. U.S. Dist. Court for S.D.N.Y., 334 U.S. 258 (1948) ............................................................................................ 40

Wayne State Univ. v. Cleland, 590 F.2d 627 (6th Cir. 1978) .............................................................................. 46

Will v. United States, 389 U.S. 90 (1967) ........................................................................................ 46, 47

Wingard v. McDonald, 779 F.3d 1354 (Fed. Cir. 2015) .................................................................... 49, 50

Yablonski v. United Mine Workers of Am., 454 F.2d 1036 (D.C. Cir. 1971) .......................................................................... 41

Statutes

5 U.S.C. 552(a)(1) .................................................................................................... 48

5 U.S.C. § 553 .................................................................................................... 11, 48

5 U.S.C. § 702 .......................................................................................................... 48

38 U.S.C. § 501(d) ................................................................................................... 53

38 U.S.C. § 502 ........................................................................................................ 48

38 U.S.C. § 1725 ...............................................................................................passim


viii

38 U.S.C. § 7252(a) ........................................................................................... 30, 42

38 U.S.C. § 7261(a)(2) ....................................................................................... 43, 65

38 U.S.C, § 7261(a)(3) ............................................................................................. 43

38 U.S.C. § 7292(d)(2)............................................................................................. 38

42 U.S.C. § 405(h) ................................................................................................... 61

42 U.S.C. § 18022(e)(3)(A)(i)-(ii) ........................................................................... 59

Other Authorities

38 C.F.R. § 3.1(p) .................................................................................................... 51

38 C.F.R. § 17.1002(f) (2012) ................................................................................... 8

38 C.F.R. § 17.1005(f) (2012) ............................................................................. 2, 12

38 C.F.R. § 199.6(a)(11) .......................................................................................... 20

38 C.F.R. § 196.16(d)(5) .......................................................................................... 20

76 Fed. Reg. 30598 (May 26, 2011) .......................................................................... 7

77 Fed. Reg. 23615 (Apr. 20, 2012) .......................................................................... 8

83 Fed. Reg. 974 (Jan. 9, 2018) ............................................................................... 11

21 Vet. App. 1 (2007) .............................................................................................. 50

4 Vet. App. 115 (1993) ............................................................................................ 50

H.R. Rep. 111-55 (2009) ............................................................................................ 6

Z. Joan Wang et al., 2019 Survey of Veteran Enrollees’ Use of Health Care 31-39 (2020) ................................................................................................ 5


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STATEMENT OF RELATED CASES

Pursuant to Rule 47.5 of this Court’s Rules, counsel for Claimants-

Appellees are unaware of any other appeal from this civil action that has

previously been before this Court or any other appellate court under the

same or similar title. Counsel for Claimants-Appellees are unaware of

any case pending in this or any other court that may directly affect or be

directly affected by this Court’s decision in this case

COUNTERSTATEMENT OF THE ISSUES

The Department of Veterans Affairs (“VA”) reimburses emergency

care expenses incurred by veterans who do not have health insurance.

The VA refuses, however, to pay for emergency care services if Medicare,

Medicaid, TRICARE or other insurance provides partial coverage. In

other words, the VA makes uninsured veterans whole, but does not

reimburse insured veterans at all, even though their partial coverage

mitigates the financial impact on the VA. This leaves insured veterans

on the hook to pay deductibles and coinsurance, which can amount to

thousands of dollars for just one episode of care.

This practice has been unlawful for more than a decade. Congress

passed the Emergency Care Fairness Act (“ECFA”) in 2010 to put insured


2

and uninsured veterans on equal footing by requiring the VA to

reimburse insured veterans for partially covered emergency services.

When the VA refused and promulgated a rule barring such payments,

the Unites States Court of Appeals for Veterans Claims (“Veterans

Court”) set the regulation aside in Staab v. McDonald, 28 Vet. App. 50

(2016).

Unfortunately, the VA ignored Staab. For more than a year, the

VA’s website continued to tell veterans that they were per se ineligible

for reimbursement if they had any health insurance. For almost 18

months, the VA refused to process claims from insured veterans, delaying

more than a million claims from veterans seeking reimbursement for

emergency healthcare.

Then, in January 2018, the VA published an interim final rule

(“IFR”) with immediate effect. The IFR was a remarkable end run around

Staab. At the same time it revoked the specific regulation struck down in

Staab, the IFR amended a different rule to ban reimbursement of any

“copayments,” “deductibles,” or “coinsurance.” 38 C.F.R. § 17.1005(f)

(2012). Because those three categories exhaust the known universe of


3

out-of-pocket costs, the IFR put insured veterans right back where they

were before Staab.

Within days of publishing the IFR, the VA updated its website and

began processing the backlog of claims. The VA rejected or denied

effectively all such claims. Moreover, the VA’s rejection and denial letters,

sent to more than a million veterans, continued to misrepresent the law

by stating that insured veterans were per se ineligible for reimbursement.

Petitioners Wolfe and Boerschinger were among the veterans who

received the VA’s false letters. They petitioned the Veterans Court for

mandamus relief because the VA’s misconduct had flouted both the

ECFA and Staab. Petitioners further alleged that the misrepresentations

had deterred other veterans from pursuing their claims and sought to

represent two classes of similarly situated veterans.

In an exhaustive opinion, the Veterans Court concluded that the

VA had “circumvent[ed] our Staab decision (or at least its effects).”

Appx17. The court found the VA’s conduct to be “startling” and

“unacceptable.” Appx2. It was “difficult to conceive” how the VA could

believe its actions were “somehow appropriate.” Id. Indeed, the court

found that the VA’s “misrepresentation[s]” had affected “over 600,000


4

veterans.” Appx2, 13. Because the VA had engaged in “a clear abuse of

administrati[ve] discretion and disrespect for judicial power,” Appx17,

“an extraordinary writ [was] appropriate,” Appx18. Further, because the

VA “could circumvent another decision,” “a means for prompt collective

enforcement” was necessary. Appx26.

On appeal, the issues are:

1) Did the Veterans Court properly issue mandamus to correct

the VA’s clear abuse of discretion?

2) Was the Veterans Court within its discretion to certify a class?

STATEMENT OF THE CASE

I. BACKGROUND

A. Veterans Millennium Health Care and Benefits Act

In 1999, Congress passed the Veterans Millennium Health Care

and Benefits Act, Pub. L. No. 106-117, 113 Stat. 1545, which directed the

VA to reimburse veterans for emergency treatment in non-VA facilities.

Id. at 1553. One prerequisite was that the veteran be “personally liable,”

which was defined to exclude situations where the veteran had “recourse

against a third party that would, in whole or in part, extinguish” their

liability. Id. at 1554 (emphasis added). The unintended result was to

penalize veterans with health insurance. Because insurance frequently


5

covers only part of the cost of emergency services, insured veterans often

must make substantial out-of-pocket payments. Those amounts could not

be recovered from the VA, even though the VA pays all liability incurred

by uninsured veterans for the same services.

Insured veterans are the majority of veterans: about 80% of

veterans maintain health insurance coverage beyond their VA benefits.

See Z. Joan Wang et al., 2019 Survey of Veteran Enrollees’ Use of Health

Care 31-39 (2020).1 Most insured veterans are participants in Medicare

(based on age or disability), Medicaid (based on low income), or TRICARE

(based on a service-related disability). See id. But even for insured

veterans, a substantial medical bill can have a devastating impact. As a

bipartisan group of 22 Senators summarized:

[T]hose who are most affected . . . are our elderly veterans, many of whom are living on fixed incomes and have limited resources to pay medical bills. Often, these veterans find themselves dealing with collection agencies as a result of emergency care received in the community. This potentially increases stress for these veterans, causes them to lose faith in the VA and keeps them from seeking future medical attention out of fear

1 https://www.va.gov/HEALTHPOLICYPLANNING/SOE2019/2019_Enrollee_Data_Findings_Report-March_2020_508_Compliant.pdf (last visited July 12, 2021).


6

of acquiring additional medical bills for which they would be financially responsible.

Letter from Sen. Rounds, et al. to Sec. McDonald (Dec. 8, 2016) at 1.2

B. Emergency Care Fairness Act

Congress addressed this disparity with the Emergency Care

Fairness Act (ECFA) in 2010. Congress amended the statute to “allow the

VA to reimburse veterans for treatment in a non-VA facility if they have

a third-party insurer that would pay a portion of the emergency care.”

H.R. Rep. 111-55 at 3 (2009). Specifically, Congress struck the words “or

in part” from 38 U.S.C. § 1725(b)(3)(C), thereby requiring the VA to

reimburse insured veterans for their out-of-pocket costs for emergency

services.

Congress also added new provisions explaining how such coverage

should work. Congress decreed that the VA is “the secondary payer” for

emergency care at non-VA facilities whenever “a third party is financially

responsible for part of the veteran’s emergency treatment expenses.”

2 https://www.baldwin.senate.gov/imo/media/doc/12.09.16%20-Letter%20in%20support%20of%20the%20ECFA.pdf (last visited July 12, 2021).


7

38 U.S.C. § 1725(c)(4)(B).3 Congress specified that the amount covered by

the VA “shall be the amount by which the costs for the emergency

treatment exceed the amount payable or paid by the third party.” Id.

§ 1725(c)(4)(A). Finally, Congress stated that the VA “may not reimburse

a veteran . . . for any copayment or similar payment that the veteran

owes the third party or for which the veteran is responsible under a

health-plan contract.” Id. § 1725(c)(4)(D).

The VA proposed rules to implement the ECFA in May 2011. The

proposal claimed that “veterans who are covered by a health-plan

contract [remained] ineligible for VA payment or reimbursement” after

the ECFA. Payment or Reimbursement for Emergency Services for Non

Service-Connected Conditions in Non-Veteran Facilities, 76 Fed. Reg.

30598 (May 26, 2011). The VA therefore proposed to keep in place a

regulation preventing “payment where the veteran is under a health-

plan contract.” Id. at 30599. In response to adverse comments, the VA

argued that the ECFA failed to accomplish its express purpose because

3 The term “third party” includes “health-plan contracts,” which in turn includes private insurance, Medicare, Medicaid, and workers compensation. See 38 U.S.C. § 1725(f)(2) and (3)(E).


8

Congress had not also amended the definition of “personally liable” in 38

U.S.C. § 1725(b)(3)(B). See 77 Fed. Reg. 23615, 23616 (Apr. 20, 2012).

C. Staab v. McDonald

The Veterans Court struck down the 2012 regulation in a landmark

decision called Staab v. McDonald, 28 Vet. App. 50 (2016). The Board of

Veterans’ Appeals (“Board”) applied the 2012 regulation forbidding

payment to veterans with “coverage under a health-plan contract . . . in

whole or in part.” 38 C.F.R. § 17.1002(f) (2012). Based on that rule, the

Board denied Richard Staab’s claim because Medicare had covered a

portion of his emergency care expenses.

The Veterans Court found that the VA’s regulation was contrary to

the unambiguous statute. The court first rejected the VA’s reading of

38 U.S.C. § 1725(b)(3)(B). This provision applies only where the veteran’s

insurance provides an “entitlement” to a particular service, which

“means ‘an absolute right.’” Staab, 28 Vet. App. at 54 (quoting Black’s

Law Dictionary (10th ed. 2014)). In other words, § 1725(b)(3)(B) applies

only when the veteran’s other health insurance “would wholly extinguish

[the] veteran’s financial liability.” Id.


9

This reading harmonizes § 1725(b)(3)(B) with the rest of the

statute. First, “subsections 1725(b)(3)(A), (C), and (D) all contemplate

situations that would wholly extinguish the veteran’s responsibility for

payment.” Id. To be consistent, § 1725(b)(3)(B) also “must contemplate a

health-plan contract covering the treatment in full.” Id. Second,

§ 1725(c)(4)(A) through (D) dictate how the VA should reimburse

veterans who have health insurance. These provisions, and particularly

§ 1725(c)(4)(A), “would be superfluous if reimbursement is barred

whenever a veteran has partial coverage from a health-plan contract.” Id.

at 54-55.

D. The VA’s Short-Lived Appeal of Staab

On April 28, 2016, the VA sought reconsideration of the Staab

decision, which was denied by the panel on June 29, 2016, and by the full

Veterans Court on July 22, 2016.

On July 14, 2016, the VA sought a stay on the ground that Staab

would “result in costs to the Department of $2,565,698,000 over a 5-year

period and $10,775,241,000 over a 10-year period.” Staab v. Shulkin, No.

14-957 (Vet. App. Ct. July 14, 2016) at 8. The stay was denied on July 14,

2016. After noticing an appeal, the VA again sought a stay on February


10

17, 2017, again claiming that Staab would impose billions of dollars of

new costs. Staab v. Shulkin, No. 14-957 (Vet. App. Ct. Feb. 17, 2017). The

second stay request was denied 5 days later. Staab v. Shulkin, No. 14-

957 (Vet. App. Ct. Feb. 21, 2017).

Briefing of the VA’s appeal was complete in April 2017. For reasons

that are unclear, the VA moved to withdraw its appeal on July 14, 2017.

Staab v. Shulkin, No. 16-2671, ECF No. 62 (Fed. Cir. July 14, 2017) (This

Court granted the motion, dismissed the appeal, and issued its mandate

three days later. Staab v. Shulkin, No. 16-2671, ECF No. 63 (Fed. Cir.

July 17, 2017).

E. The VA’s Effort to Circumvent Staab.

Staab held that the VA must reimburse veterans for the “portion of

their emergency medical costs that is not covered by a third party insurer

and for which they are otherwise personally liable.” 28 Vet. App. at 55.

That holding has been binding on the VA from the date of the decision,

April 8, 2016. Unfortunately, the VA has consistently tried to circumvent

its obligations under Staab.

1. Moratorium

Immediately after the Staab decision, the VA stopped processing

claims for emergency medical care expenses. Appx289-90. The VA


11

imposed this moratorium with no publicity and to the great prejudice of

all affected veterans. Ultimately, the moratorium delayed resolution of

approximately one million claims. Appx302.

2. Interim Final Rule

The VA published an interim final rule (“IFR”) on January 9, 2018

that took immediate effect. Under the Administrative Procedure Act, an

IFR requires a showing of “good cause” that notice and comment would

be “impracticable, unnecessary or contrary to the public interest.”

5 U.S.C. § 553(b)(B). Good cause also must exist before any rule can take

immediate effect. Id. § 553(d)(3). To claim good cause, the VA cynically

pointed to its own decision to stop processing claims related to emergency

medical care. See generally Reimbursement for Emergency Treatment,

83 Fed. Reg. 974 (Jan. 9, 2018).

The VA also claimed that the “purpose” of the IFR was “to comply

with” Staab. Id. at 975. Whatever its purpose might have been, the effect

of the IFR was to continue the unlawful ban struck down in Staab. When

Congress mandated that the VA begin reimbursing insured veterans for

their out-of-pocket costs, see 38 U.S.C. § 1725(c)(4)(A), Congress also

forbade reimbursement of “any copayment or similar payment,”


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38 U.S.C. § 1725(c)(4)(D). The IFR unlawfully expanded that provision

by adding two additional words:

VA will not reimburse a veteran under this section for any copayment, deductible, coinsurance, or similar payment . . .

38 C.F.R. § 17.1005(f) (2012) (emphasis added). The IFR did not explain

why the VA had concluded that “coinsurance” and “deductibles” are

similar to copayments. Nor did the IFR address the fact that this rule

meant that the VA would never have to reimburse insured veterans for

partially covered emergency services.

To understand how the IFR works, one has to understand how

healthcare services are reimbursed. A “claim” for reimbursement can

include many individual healthcare “services,” and coverage is provided

(or not) at the “service” level. When an insurer does not cover a service,

the veteran is uninsured as to that service and the VA makes the veteran

whole (this was true even before the ECFA). When an insurer fully covers

a service, then the insurance has extinguished the veteran’s liability and

there is nothing for the veteran to seek from the VA. This also was not

changed by the ECFA.


13

The IFR comes into play only when insurance partially covers a

particular service. In this situation, the insurer pays some of the costs

billed by the provider, and the veteran must pay the remainder. The

veteran’s share of the liability is the “out of pocket” cost of the service.

Insurers, including the Centers for Medicare & Medicaid Services

(“CMS”), refer to out-of-pocket costs as “cost sharing”:

Cost Sharing

Your share of costs for services that a plan covers that you must pay out of your own pocket (sometimes called ‘out-of-pocket costs’).

CMS, Glossary of Health Coverage and Medical Terms.4 There are only

three known types of cost shares: copayments, deductibles, and

coinsurance. See id. By prohibiting payment of any and all cost shares,

the IFR ensured that insured veterans would never recover any out-of-

pocket costs from the VA.

3. Refusal to Make Payment

With the IFR in place, the VA lifted its moratorium and began to

process the backlog of claims by rejecting wholesale the claims it was

supposed to pay under the ECFA and Staab. Press reports indicate that,

4 https://www.cms.gov/CCIIO/Resources/Forms-Reports-and-Other-Resources/Downloads/Uniform-Glossary-01-2020.pdf (last visited July 12, 2021).


14

as of February 2019, the VA had paid a grand total of $12 (no zeroes

missing) for such claims. Appx343.

Mr. Staab’s own experience is unfortunately emblematic. Mr. Staab

experienced a heart attack and went to the closest emergency room in

December 2010. Appx605. Although he had Medicare, his out-of-pocket

expenses were substantial. Appx606. Even though he won his appeal in

April 2016, Mr. Staab had not received a penny from the VA on his claim

as of December 2019. Appx607-09. Tragically, Mr. Staab passed away

earlier this year without receiving full payment. Matthew Simon,

Veteran at center of ER visit reform dies without full court ordered VA

refund, WHIO-TV7 (May 12, 2021).5

4. Misrepresentations

The VA also waged a disinformation campaign against veterans.

Well after the decision in Staab, the VA’s website continued to claim that

veterans with insurance were ineligible for reimbursement. Through at

least June 2017, that website6 directed veterans to a 2010 “Fact Sheet”

5 https://www.whio.com/news/i-team-veteran-center-er-visit-reform-dies-without-full-court-ordered-va-refund/QX2KCN36SFFM5MSOKUB5VKABN4/ (last visited July 12, 2021). 6 VHA Office of Community Care, Community Emergency Care, Emergency Care of Nonservice-Connected Conditions (archived version dated June 28, 2017),


15

arguing that the EFCA did not “change the requirement that a Veteran

can have no entitlement to care and services under a health plan contract

. . . .”7 The website also directed veterans to a “Fact Sheet” created after

Staab that asserted that the eligibility criteria included that “Veteran

has no other health insurance coverage.”8

In contrast, the VA immediately updated its website to reflect the

IFR. The January 11, 2018 version of the website stated:

By law, VA cannot reimburse remaining costs such as copayments, cost shares or deductibles associated with a Veteran’s [other health insurance].”9

Notably, the updated website paraphrased the IFR by replacing the word

“coinsurance” with the phrase “cost shares.”

https://web.archive.org/web/20170628084013/https://www.va.gov/COMMUNITYCARE/programs/veterans/Emergency_Care.asp (last visited July 13, 2021). 7 Fact Sheet 16-13, Veterans’ Emergency Care Fairness Act (Feb. 2010) (archived version dated June 28, 2017), https://web.archive.org/web/20170628085229/https://www.va.gov/HEALTHBENEFITS/assets/documents/publications/FS16-13.pdf (last visited July 13, 2021). 8 Fact Sheet 20-02, Emergency Care for Veterans (November 2016) (archived version dated June 29, 2017), https://web.archive.org/web/20170629011601/https://www.va.gov/COMMUNITYCARE/docs/pubfiles/factsheets/FactSheet_20-02.pdf (last visited July 13, 2021). 9 VHA Office of Community Care, Emergency Medical Care, Emergency Care of Nonservice Connected Conditions (archived version dated Jan. 11, 2018), https://web.archive.org/web/20180111184350/https:/www.va.gov/COMMUNITYCARE/programs/veterans/Emergency_Care.asp (last visited July 13, 2021).


16

The VA also included misrepresentations in its letters to veterans.

In February 2018, Claimant-Appellee Amanda Wolfe received a denial

letter stating that the presence of any “coverage under a health-plan

contract” precluded reimbursement. Appx199. In November 2018,

Claimant-Appellee Peter Boerschinger received a denial containing both

that misrepresentation and another:

Veteran has other insurance coverage eligible to make payment on the claim. The veteran must not have coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment.

Appx212. The VA has conceded that it sent at least 111,831 denial letters

containing these or similar false statements between April 8, 2016, and

February 8, 2019. Appx731-32.

The VA also sent “rejection” letters effectively telling insured

veterans not to bother pursuing their claims. Those letters stated, in bold,

that reimbursement is available only if “Veteran has no coverage

under a health plan contract.” E.g., Appx216, 218, 220, 223, 225. The

rejection letters further stated:

By law, VA cannot reimburse costs such as copayments, cost shares or deductibles associated with a Veteran’s OHI.


17

E.g., Appx216, 218. The VA invited the veterans to submit more

information, but only if the veteran could show liability that was not

attributable to copayments, cost shares or deductibles. E.g., id. The VA

sent at least 1,017,406 rejection letters containing these or similar false

statements between April 8, 2016 and February 8, 2019. Appx731-32.

Beginning on or about February 8, 2019, the VA began sending

denial letters with similar language:

To be eligible for VA reimbursement under 38 U.S.C. 1725, as implemented, all of the following requirements must be met: . . .

(4) You are financially liable to the provider for the costs of the emergency treatment after any payment by . . . a health-plan contract, excluding any copayment, deductibles, coinsurance, or other similar payments . . .

Appx309-10 (emphasis added). The VA sent at least 12,899 denial letters

with such language between February 8, 2019, and the date of the

decision below, September 9, 2019. Appx732.

II. PROCEEDINGS BELOW

A. The VA’s Admission of Wrongdoing

The Amended Petition sought (1) certification of two classes of

veterans; (2) a declaration that the IFR was contrary to law; (3) an order

compelling the VA to re-adjudicate its denials of claims related to


18

emergency care; and (4) an order requiring the VA to stop making, and

to correct, its misrepresentations. Appx136-38.

The VA responded by conceding that Petitioner’s allegations “about

VA’s letters [are] well-taken.” Appx242. The VA admitted that, after

Staab, it had sent “correspondence that erroneously advised veterans

that their claim could not be granted if they had whole or partial other

health insurance,” Appx290, which it described as a “regrettable error.”

Appx298. The VA committed to a “corrective action plan” that would

satisfy “each item of relief Boerschinger has requested.” Appx293. The

VA thus promised to invalidate its prior decisions, send correction

notices, re-adjudicate the affected claims, and re-set applicable deadlines.

See Appx290-93; see also Appx303-05.

Unfortunately, the VA’s correction notices made matters worse.

Some correction letters claimed that the veterans’ claims had been

“properly denied” or “properly rejected.” Appx353, 355. Most also stated

that it was “important to note that VA has no legal authority to pay a

Veteran’s cost shares, deductibles, or copayments associated with their

other health insurance.” Id. The VA sent approximately 42,050 such


19

notices. Appx388. Whatever their intent, the effect of these assertions

was to deter veterans from pursuing their claims.

B. The VA’s Defense of the Interim Final Rule

Several aspects of the VA’s defense of the IFR are important. First,

the VA repudiated its predictions (see supra 11-13) that Staab would

require billions in additional payments to veterans—another “regrettable

error.” Appx412. The VA’s revised position was that Staab had no

discernable impact on the VA’s reimbursement payments to veterans for

emergency care services. Appx417.

Second, to explain why Staab had no impact, the VA adopted the

extraordinary position that 38 U.S.C. § 1725(c)(4)(A) is surplusage (or at

least mostly so) in light of 38 U.S.C. § 1725(c)(4)(D). According to the VA,

when it passed the ECFA, “Congress removed the partial health

insurance bar but simultaneously erected a bar that covers nearly all of

the same ground.” Appx412-13. In other words, VA contended that

Congress failed to do what it set out to do in the ECFA.

Third, to save § 1725(c)(4)(A) from being completely surplusage, the

VA suggested that it “may” reimburse a veteran if a provider engages in

“balance billing.” Appx413. The VA omitted that the practice of balance


20

billing is frequently illegal.10 The VA also provided no evidence indicating

that it had ever actually made such reimbursement.

Fourth, the VA invented the term “cost-share exclusion” for

§ 1725(c)(4)(D). Appx413-15. Although the statute never mentions cost

sharing, the VA claimed that the statute commands it “not to reimburse

. . . cost-sharing obligations.” Appx417; see Appx416 (claiming that the

statute imposes an “independent obligation to enforce the cost-share

exclusion.”).

Finally, the VA claimed that the words “or similar copayment” in

§ 1725(c)(4)(D) would be surplusage unless coinsurance and deductibles

were excluded. Appx416-17; see Appx257 (“if deductibles and coinsurance

are not similar payments to copayments . . . VA is not aware of any other

form of payment that would be”) (cleaned up).

10 Insurers set allowed amounts that providers may charge. Balance billing (also known as “surprise billing”) occurs “[w]hen a provider bills [the patient] for the difference between [its] charge and the allowed amount.” Healthcare.gov, https://www.healthcare.gov/glossary/balance-billing/. The federal healthcare programs have long forbidden this practice. See, e.g., 38 C.F.R. §§ 199.6(a)(11), 196.16(d)(5) (TRICARE).


21

C. The Decision Below

In a careful opinion, the Veterans Court granted mandamus and

certified the Wolfe class (“the class”). The court found jurisdiction

appropriate for several reasons. First, the All Writs Act authorizes

mandamus in aid of a court’s prospective jurisdiction, and the VA’s

misconduct had undermined the court’s jurisdiction by deterring

veterans from pursuing claims and litigating appeals. Appx17. Second,

the court found that the IFR had been promulgated “to achieve the same

effect that the invalid regulation in Staab.” Id. The court described the

end run around Staab as “startling,” “unacceptable,” and “a clear abuse

of administrat[ive] discretion.” Appx2, 17. The VA’s “disrespect for

judicial power” created “a truly exceptional situation,” Appx17, and was

additional cause for mandamus, Appx18. Third, the court explained that

Congress intended for the Veterans Court to “hear challenges to VA

regulations through class actions.” Appx19 (citing Monk v. Shulkin, 855

F.3d 1312, 1320 n.4 (Fed. Cir. 2017)). Fourth, the Veterans Court

concluded that the exercise of jurisdiction over the class would not

conflict with the jurisdiction of any other tribunal. Appx18-19.


22

The court next addressed the need to certify the class.11 The court

determined that the requested relief was appropriate for a class action

and that the proposed class met the requirements of numerosity,

commonality, typicality, and adequacy of representation and counsel.

Appx20-26. Moreover, a class was superior to allowing individual claims

to proceed through the administrative process because the VA could just

“circumvent another decision.” Appx26-27.

Turning to the merits, the Veterans Court held that mandamus was

warranted. The court assumed arguendo that the IFR should be

evaluated under Chevron step two. Appx28-29 (citing Chevron U.S.A.,

Inc. v. NRDC, Inc., 467 U.S. 837, 843-44 (1984)). Even under that

standard, the IFR was plainly invalid. First, it was unreasonable for the

VA to claim that coinsurance and deductibles are “similar to” copayments

given the vastly different economic impact they have on veterans.

Appx29-30, 32-33. Second, the IFR eliminated any possibility that the VA

would ever reimburse veterans for partially covered services, which was

11 The court dismissed the request to certify the Boerschinger class as moot because the VA had conceded error and agreed to provide relief. Appx14-15.


23

contrary to Staab and rendered § 1725(c)(4)(A) surplusage. Appx30-31.12

Third, the VA erred in construing § 1725(c)(4)(B) as a cost-share

exclusion when Congress had not used that term and had excluded only

the narrower category of “any copayment and similar payments.”

Appx32-33.

Finally, the court held that the class lacked an alternative remedy.

The court determined that it would be “futile” and a “useless act” to force

Ms. Wolfe to pursue her individual appeal. Appx33. The court further

held that the class members would not be able to exercise their appellate

rights unless the court intervened “to prevent enormous bureaucratic

waste that would result from VA’s continued erroneous adjudications and

communications.” Appx34.

Ultimately, the court (1) certified the class; (2) invalidated the IFR;

(3) vacated any prior VA denials based on the IFR and ordered the VA to

re-adjudicate those claims; (4) ordered the VA to stop making

misrepresentations to veterans, including the class members; and

12 The court rejected the VA’s argument that reimbursement remained available for balance billing. The court noted that balance billing was generally unlawful, and it faulted the VA for failing to show that the agency actually reimburses veterans for balance billing. Appx30-31.


24

(5) ordered the VA to prepare a corrective action plan to cure its

misrepresentations. Appx36.

As described in the Brief for Respondent-Appellant (“Br.”), Judge

Falvey dissented. See Br. 12-14.

D. Continued Misrepresentations

A core aspect of the writ was an order that the VA must stop

misrepresenting that it has “no legal authority to pay a Veteran’s cost

shares, deductibles, or copayments . . . .” Appx36.

For nearly six months after the writ, the VA continued to make that

exact misrepresentation. The VA’s website for veterans continued to

falsely state, in bold font, that “[b]y law, VA cannot pay copayments,

coinsurance, deductibles . . . a Veteran may owe.” Appx761; see

Appx767. Below, the VA waived that misrepresentation off as another in

its string of “regrettable errors.” Appx779.

As of this writing, the VA continues to make similarly false claims.

For example, the VA still publishes Fact Sheet 16-13,13 which claims that

the EFCA did not “change the requirement that a Veteran can have no

13 https://www.va.gov/healthbenefits/assets/documents/publications/FS16-3.pdf (last visited July 12, 2021).


25

entitlement to care and services under a health plan.” As a second

example, the VA still publishes (at multiple sites) the April 2018 version

of its Emergency Medical Care Fact Sheet,14 which states:

By law, VA cannot pay: • Copayments • Coinsurance • Deductibles • Similar payments a Veteran may owe

to the provider as required by their OHI

As a third, the VA still publishes the April 2018 version of its Emergency

Transportation (Ambulance) Fact Sheet,15 which includes the same

misrepresentation as an endnote.

E. Continued Refusal to Pay

Two months after the writ, the Board granted Ms. Wolfe’s claim.

Appx724-27. Despite having no legal authority to withhold payment, the

VA still has not paid what it owes to Ms. Wolfe, which continues to cause

ongoing hardship. In its brief, the VA indicates that it is withholding the

14 https://www.southtexas.va.gov/Documents/EmergencyMedCareFactSheet2002.pdf (last visited July 12, 2021); https://www.phoenix.va.gov/docs/Services/VRC/Emergency_Care_FactSheet.pdf (last visited July 12, 2021); https://www.chillicothe.va.gov/Documents/Veteran_Orientation_Documents/Emergency_Medical_Care.pdf (last visited July 12, 2021); https://www.tennesseevalley.va.gov/docs/TVHSNewsS18.pdf (last visited July 12, 2021). 15 https://www.fargo.va.gov/images/2018/EmergencyTransportation.pdf (last visited July 12, 2021).


26

amount owed to Ms. Wolfe to avoid mooting her “personal stake in the

outcome of this case.” Br. 15 n.7.

SUMMARY OF ARGUMENT

This case involved “an extraordinary situation” that demanded

“extraordinary relief.” Appx2. The Veterans Court found that the VA had

promulgated an interim final rule that had the effect of reinstituting a

rule that the Veterans Court had struck down. The Veterans Court found

that the VA had misrepresented the law in hundreds of thousands of

letters to veterans, which had deterred them from pursuing their claims

or appealing the VA’s illegitimate denials. The Veterans Court issued a

writ of mandamus to correct that extraordinary misconduct, and it did so

on a class basis to ensure that the VA did not circumvent its ruling in

another individual case. Appx26.

The VA’s appeal from the writ is entirely without merit. The VA’s

brief fails to deal with the extraordinary circumstances of this case,

thereby ignoring all of the factors that led to the imposition of an

extraordinary writ.

As a threshold issue, there is no jurisdictional problem because the

Veterans Court had prospective jurisdiction over Ms. Wolfe’s claim and


27

those of the class. The relief entered by the writ was in aid of that

jurisdiction, as well as the court’s prior jurisdiction and its jurisdiction to

hear class actions. Moreover, the writ was independently justified as an

exercise of the court’s supervisory authority to address the VA’s clear

abuse of discretion and usurpation of authority. Nor did the writ impinge

upon the jurisdiction of any other tribunal.

Next, the elements of mandamus were satisfied. Mandamus

requires a clear right to relief, no other adequate means to attain relief,

and a showing that relief is appropriate under the circumstances. The VA

does not challenge the third element. The first element is met because

the IFR is plainly contrary to the ECFA, and especially 38 U.S.C.

§ 1725(c)(4)(A), because it rendered the requirement that the VA

reimburse insured veterans surplusage. And the second element is met

because there is no other means for the class to obtain the relief entered

by the writ and because requiring Ms. Wolfe to exhaust administrative

remedies would have been futile and lead to years of unreasonable and

wholly unnecessary delay for both her and the class.

Although the VA does not challenge the Veterans Court’s

application of the Rule 23 factors in certifying the class, it does raise


28

certain challenges to the membership of the class. These arguments were

not made below and are waived, and are without merit in any case. Any

class member’s claims that were denied are appropriately maintained

within the class through equitable tolling. Any class member’s claims

that have not yet been denied are appropriately maintained within the

class as an exercise of prospective jurisdiction. Finally, the class

appropriately includes all veterans who were harmed by the IFR,

regardless of whether their individual claims sought reimbursement of

deductibles, coinsurance, or both.

ARGUMENT

I. THE VETERANS COURT APPROPRIATELY ISSUED A WRIT OF MANDAMUS.

The Veterans Court has power to issue mandamus against the VA,

Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1988), including on a class

basis “to compel correction of systemic error.” Monk v. Shulkin, 855 F.3d

1312, 1321 (Fed. Cir. 2017). Whether to issue a writ of mandamus “is in

large part a matter of discretion with the court.” Kerr v. U.S. Dist. Ct. for

N.D. Cal., 426 U.S. 394, 403 (1976). Mandamus generally is appropriate

where (1) the petitioner has a clear and indisputable right to relief;

(2) there is no other adequate means to attain relief; and (3)


29

extraordinary relief is appropriate under the circumstances. Cheney v.

U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004).

On appeal, the VA primarily raises jurisdictional challenges. See

Br. 18-34. The VA also challenges the first and second elements of

mandamus. See Br. 34-50. The VA does not challenge the third element,

thereby conceding that mandamus was “appropriate under the

circumstances.” Cheney, 542 U.S. at 381.

By conceding the third element, the VA avoids having to discuss

(much less refute) the “extraordinary—if not unique—circumstances”

that the court found below. Appx34. For instance, the VA mentions its

many misrepresentations only in a footnote, and it euphemistically dubs

them a “notice issue.” Br. 22 n.8. In another footnote, the VA wonders

why the Veterans Court found that its misconduct was a clear abuse of

discretion and disrespect for the judiciary. Id. 24 n.11. Those two notes

are the only places where the VA even comes close to acknowledging the

extraordinary nature of this case.

In any event, the class’s claims were (and are) within the

prospective jurisdiction of the Veterans Court. The writ was proper under

the All Writs Act because it was in aid of the court’s prospective


30

jurisdiction, its prior jurisdiction, and its authority to hear class actions.

The writ was independently proper because it was necessary to correct

the VA’s clear abuse of discretion. Nor did the writ impinge upon the

jurisdiction of any other tribunal.

The elements of mandamus also were satisfied. Petitioners’ right to

a writ is clear and indisputable because the IFR is contrary to both the

plain meaning of the statute and the unappealed, precedential judgment

in Staab. Finally, in light of the extraordinary circumstances of this case,

mandamus is the only adequate remedy.

A. The Veterans Court Properly Asserted Jurisdiction.

1. The Class Was Within The Prospective Jurisdiction Of The Veterans Court.

All agree that the subject matter jurisdiction of the Veterans Court

is appellate in nature and includes appeals from decisions of the Board.

38 U.S.C. § 7252(a). The prospective jurisdiction of the Veterans Court

therefore includes any claim that a veteran might appeal to the Board

and, from there, to the Veterans Court. See, e.g., FTC v. Dean Foods Co.,

384 U.S. 597, 603 (1966) (prospective jurisdiction includes potential

appeals that are “not then pending but may be later perfected”); Roche v.

Evaporated Milk Ass’n, 319 U. S. 21, 25 (1943) (prospective jurisdiction


31

“extends to those cases which are within [a court’s] appellate jurisdiction

although no appeal has been perfected”). Because class members have

filed claims and received denials, Appx36, 731-32, they all are within the

prospective jurisdiction of the Veterans Court.

In re Tennant, 359 F.3d 523 (D.C. Cir. 2004), shows that the

Veterans Court properly asserted prospective jurisdiction. There, the

D.C. Circuit lacked authority to issue mandamus because the petitioner

“never initiated a proceeding with the FCC.” Id. at 529. Mandamus

requires that “a proceeding of some kind” be “instituted before [the]

agency . . . that might lead to an appeal.” Id. Once such a proceeding

exists, the matter is within the “prospective or potential” jurisdiction of

the court. Id. In other words, courts have prospective jurisdiction so long

as the petitioner has taken “at least the first preliminary step that might

lead to appellate jurisdiction . . . in the future.” Id.16

16 The VA cites Tennant to assert erroneously that the Veterans Court exercised “original jurisdiction” over the class’s claims for reimbursement. See Br. 33. Tennant explains that a court exercises original jurisdiction when it creates a new proceeding. 359 F.3d at 530 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-76 (1803)). A writ remains part of the court’s appellate jurisdiction if it addresses “‘proceedings in a cause already instituted.’” Id. Because it addressed ongoing proceedings (claims that had already been filed by class members and denied by the VA), the writ was clearly appellate in nature.


32

This Court recently followed Tennant in Mylan Labs Ltd. v. Janssen

Pharmaceutica, N.V., which arose from a preliminary decision of the

Patent Trial and Appeal Board that ordinarily was not appealable. 989

F.3d 1375, 1379-80 (Fed. Cir. 2021). The Court nevertheless found it had

prospective jurisdiction (and, therefore, authority to issue mandamus)

because the petitioner had taken the “first preliminary step that might

lead to appellate jurisdiction . . . in the future” by commencing the

proceedings below. Id. at 1380.

Here, the first “preliminary step” was the submission to the VA of

a claim for reimbursement of emergency care services. The second

“preliminary step” was the VA’s decision to deny the claims. As class

representative, Ms. Wolfe also took third and fourth “preliminary steps”

by filing Notices of Disagreement prior to seeking mandamus. Appx205-

06, 210. Under Mylan Labs and Tennant, those steps were sufficient to

bring both Ms. Wolfe and the class within the prospective jurisdiction of

the Veterans Court. See also, e.g., Erspamer v. Derwinski, 1 Vet. App. 3,

8-9 (1990) (prospective jurisdiction exists over Notices of Disagreement).


33

2. The Writ Was In Aid Of Prospective Jurisdiction.

The VA argues at length that the writ was not “in aid of” the court’s

prospective jurisdiction. See Br. 18-26. That argument fails for at least

three independent reasons.

[a] All agree that the Veterans Court may issue mandamus to

correct agency misconduct that “frustrate[s]” the court’s prospective

jurisdiction. In re Wick, 40 F.3d 367, 373 (Fed. Cir. 1994). The VA

suggests that only unreasonable delay or an outright refusal to act can

have that effect, see Br. 22-24, but that is clearly incorrect. Any agency

misconduct that deters or chills veterans from pursuing their claims also

frustrates prospective jurisdiction. See, e.g., Moore v. Derwinski, 1 Vet.

App. 83, 84 (1990) (alleged retaliation against a veteran was “grossly

improper” and “if true, would establish an effort to restrict the

jurisdiction of this Court through intimidation”). The VA concedes as

much by admitting that mandamus is an “appropriate remedy” to correct

its misrepresentations. Br. at 22 n.8.

The VA tries to limit that concession to Mr. Boerschinger, id., but

it applies equally to the class. The VA falsely told Mr. Boerschinger that

his health insurance still precluded payment after Staab. See Appx212.


34

The VA sent denial letters containing versions of the same false message

to 61,533 members of the class, see Appx731, including Ms. Wolfe, see

Appx199.

In addition, all 74,432 members of the class received denial letters

from the VA falsely stating that the statute prohibited the VA from

reimbursing any cost shares, including coinsurance or deductibles. See

Appx731-32; see also Appx225, 309-10. Class members also were likely

among the 42,050 veterans who received the “corrective” notices that the

VA began sending in April 2019, Appx388, which repeated the

misrepresentation that the agency lacked authority to reimburse

coinsurance or deductibles. Appx351.

The writ ordered the VA to stop making that false statement.

Appx35-36; see Br. 12 (ordering “VA to stop sending certain notices to

veterans and to propose a plan for providing corrected notices”). As the

Veterans Court explained, that misrepresentation could deter veterans

from pursuing their claims and/or from filing appeals. Appx17. It follows

that the writ was an express effort to protect and preserve the prospective

jurisdiction of the Veterans Court.


35

[b] The VA also argues that a writ cannot be in aid of prospective

jurisdiction if it invalidates a “benefits regulation,” because doing so

allegedly amounts to a “‘merits decision.’” Br. 23 (quoting Heath v. West,

11 Vet. App. 400, 402-03 (1998)); see Br. 25 (claiming that courts are

prohibited from using “mandamus to decide the merits of a matter for a

lower tribunal”) (citing Platt v. 3M, 376 U.S. 240, 245 (1964)). This

argument misstates what happened below.

Petitioners argued that the VA had deterred veterans from

pursuing claims and appeals by repeatedly misrepresenting that their

claims were doomed to fail. Appx364-65. The Veterans Court determined

that the VA’s statement was, in fact, a “misrepresentation.” Appx2. To

make that determination, the Veterans Court necessarily had to decide

whether the IFR conflicted with the statute. In other words, the

invalidity of the regulation was an inextricable part of the threat to the

court’s prospective jurisdiction. Compare In re Innotron Diagnostics, 800

F.2d 1077, 1082 (Fed. Cir. 1986) (mandamus can address issues that are

“intimately bound up with . . . [the] jurisprudential responsibilities of this

court” even if the issue “would not necessarily frustrate this court’s

appellate jurisdiction”).


36

The cases the VA cites in its brief reinforce, rather than undermine,

the conclusion that the Veteran Court appropriately issued a writ of

mandamus. In Platt, the district court denied a motion to transfer, citing

several factors. See 376 U.S. at 241. The circuit court entered mandamus

on the ground that one of the factors was inappropriate and immediately

transferred the case. See id. at 243-44. The Supreme Court approved of

mandamus “to determine the appropriate criteria” for a motion for

transfer. Id. at 245. The Supreme Court objected only to the transfer

order; having clarified the appropriate criteria, the circuit court should

have remanded the case to the trial judge for further consideration. Id.

The writ below is thus consistent with Platt. The Veterans Court did not

order that any claim be allowed or that any money be paid. Instead, the

writ clarified that the IFR did not contain “appropriate criteria” for the

VA to use to deny a claim, and it remanded all affected claims to the VA

for re-adjudication.

Similarly, in Heath, the Veterans Court found that it had power to

order the VA “to adjudicate [a] claim,” but would not “assume the role of

adjudicator in the first instance.” 11 Vet. App. at 402-03. Again, the writ

here did not place the Veterans Court in the role of adjudicator. The VA’s


37

own corrective action plans recognize that the VA remains responsible

for re-adjudicating all class members’ claims. See Appx741 (“VA will re-

decide your claim and issue a new decision”); Appx742 (“VA will re-decide

your claim(s) and will issue a new decision”); Appx743 (“your appeal

period has been re-started and you will have one year from the date of

this letter to appeal”); Appx744 (“your claim will be processed in

accordance with current applicable law”).

Finally, because the writ ordered the VA to re-adjudicate the

affected claims, the VA’s repeated assertion that the writ eliminated the

need for future review (see Br. 24-26) is without factual basis. No one

knows how the VA will re-adjudicate a given claim. Cf. Erspamer, 1 Vet.

App. at 9 (“It is impossible for this court to predict what course

petitioner’s claim might follow in the future and there is nothing to be

gained by engaging in such an exercise.”). The VA may deny class

members’ claims if there is a legitimate reason to do so, and any

disappointed class member can appeal such denial to the Board and, from

there, to the Veterans Court.

[c] The VA also suggests that the record below was insufficient

to support a finding that the VA had deterred veterans from pursuing


38

their appeal rights. See Br. 21-22 (accusing the court below of “hyperbole”

and “speculation”). This argument fails because the factual finding of

deterrence is outside the scope of review. 38 U.S.C. § 7292(d)(2); Delisle

v. McDonald, 789 F.3d 1372, 1374 (Fed. Cir. 2015).

More fundamentally, the argument fails because it addresses only

the court’s statement that the IFR itself was a deterrent. See Br. 21-22.

The VA completely ignores the court’s alternative holding that the VA’s

misrepresentations had frustrated its prospective jurisdiction. As the

court put it, the VA’s misrepresentations were “critically important

because, if left uncorrected, [veterans] won’t appeal or, perhaps, not even

continue with a claim.” Appx17. That finding was neither speculative nor

hyperbolic.

To begin, the false statements on the VA’s website, see supra 16-17,

likely deterred an unknowable number of veterans from even filing

claims. Indeed, the VA still publishes a Fact Sheet containing that false

claim. See supra 24-25. Common sense teaches that at least some

veterans relied on the VA’s misrepresentations to their detriment by

deciding not to submit their claims.


39

Next, the VA likely caused veterans to abandon rejected claims. The

VA rejected 1,017,406 claims from insured veterans after Staab.

Appx731-32. The rejection letters falsely stated that veterans with other

health insurance were ineligible for reimbursement. The rejection letters

also instructed veterans to submit more information only if they could

show out-of-pocket costs other than coinsurance, deductibles, or

copayments. Appx216, 218. Later, the putative “correction” notices that

the VA sent beginning in April 2019 falsely told these veterans that it

was “important to note that the VA has no legal authority to pay a

Veteran’s cost shares, deductibles, or copayments.” Appx355. It is not

speculative to conclude that veterans likely responded to these letters by

abandoning their claims.

Finally, the VA deterred veterans from appealing denied claims by

including similar false statements in its denial letters. The VA claims

that the “tens of thousands of claims and appeals of the members of

the Wolfe Class” shows that no deterrence occurred. Br. 22 (emphasis

added). Conjoining “claims and appeals” in that sentence is misleading.

After the writ issued, the VA revealed that it has denied 74,432 claims

involving class members, but it did not say how many class members filed


40

appeals. The record includes absolutely no evidence suggesting that

“tens of thousands” of class members had filed appeals prior to the writ.

3. The Writ Was In Aid Of Prior Jurisdiction.

The VA wrongly asserts that mandamus is available “only” to assist

a court’s “future” jurisdiction. See, e.g., Br. 9, 16, 20, 25. Although

mandamus frequently protects prospective jurisdiction, it also is

available to protect a prior exercise of jurisdiction.

As the Supreme Court has explained, “the fact that mandamus is

closely connected with the appellate power does not necessarily mean

that the power to issue it is absent where there is no existing or future

appellate jurisdiction to which it can relate.” United States v. U.S. Dist.

Court for S.D.N.Y., 334 U.S. 258, 263 (1948). “It is, indeed, a high

function of mandamus to keep a lower tribunal from interposing

unauthorized obstructions to enforcement of a judgment of a higher

court.” Id. at 264. “That function may be as important in protecting

a past exercise of jurisdiction as in safeguarding a present or future

one.” Id. (emphasis added). Appellate bodies therefore have authority to

use mandamus “to compel adherence” to their prior judgments. Clinton

v. Goldsmith, 526 U.S. 529, 536 (1999). Indeed, a lower tribunal “‘is


41

without power to do anything which is contrary to either the letter or

spirit of [a] mandate’” issued by an appellate court. Yablonski v. United

Mine Workers of Am., 454 F.2d 1036, 1038 (D.C. Cir. 1971). “[I]t is well

settled that mandamus lies to rectify a deviation.” Id.

The VA completely ignores this important line of authority. The

Veterans Court found that the IFR had been promulgated “to achieve the

same effect as the invalid regulation in Staab.” Appx17. The court also

found that the VA had used the IFR “to circumvent our Staab decision

(or at least its effects).” Id. The court correctly recognized that these facts

presented “a truly exceptional situation,” and an independent

justification for the writ. Appx17-18. The VA has no response.

4. The Writ Was An Appropriate Use Of The Court’s Authority To Hear Class Actions.

The Veterans Court has power to hear class actions under several

authorities, including the All Writs Act. See Monk, 855 F.3d at 1318; see

also U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974) (the

All Writs Act allows courts to fashion “‘appropriate modes of procedure’”)

(quoting Harris v. Nelson, 394 US 286, 299 (1969)). Class actions serve a

critical function. They promote “efficiency, consistency, and fairness.”

Monk, 855 F.3d at 1320. They improve “access to legal and expert


42

assistance” for veterans who frequently have “limited resources.” Id.

Class actions also advance the judiciary’s interest by increasing the

frequency of precedential decisions and by limiting the VA’s ability to

evade review by intentionally mooting individual claims. See id. at 1320-

21. Most importantly, class actions can “compel correction of systemic

error and to ensure that like veterans are treated alike.” Id. at 1321.

The VA makes two incorrect arguments that the writ was not an

appropriate use of the court’s authority to entertain class actions. First,

the VA contends that class actions in the Veterans Court are available

only to compel a final determination or correct unreasonable delay, Br.

54; see id. at 20, 32, and cannot challenge its regulations, id. at 30.

Second, and relatedly, the VA argues that a class action in the Veterans

Court cannot include a “direct challenge” to a VA regulation. Id. at 15-16,

27, 32, 55. It is wrong on both points.

[a] The VA’s first argument wrongly conflates jurisdiction and

authority to enter relief. The jurisdiction of the Veterans Court to hear a

class action stems from its prospective jurisdiction under 38 U.S.C.

§ 7252(a). When prospective jurisdiction exists (as it did below), the

Veterans Court has authority to take any of the actions outlined in


43

38 U.S.C. § 7261. Thus, 38 U.S.C. § 7261(a)(2) authorizes the Veterans

Court to compel a final decision or to correct an unreasonable delay. The

same statute also authorizes the VA to provide an authoritative

interpretation of the law, id. § 7261(a)(1), and to invalidate “regulations,”

id. § 7261(a)(3). Nothing in the statute prohibits the use of these powers

in class actions.

[b] The VA notably does not specify what it means by a “direct

challenge.” At points, the VA suggests that a “direct” challenge is one that

attacks the “facial validity” of a rule. Br. 56; see also id. at 29. The

suggestion that the Veterans Court lacks authority to entertain “facial”

challenges (as opposed to “as applied” challenges) is clearly wrong. There

is no such limitation in 38 U.S.C. § 7261(a)(3), which does not distinguish

between facial and as-applied challenges. To the contrary, Congress

modeled that provision after the Administrative Procedure Act (“APA”),

see Martin v. O’Rourke, 891 F.3d 1338, 1343 (Fed. Cir. 2018), and facial

challenges to agency regulations are a routine part of APA practice. See,

e.g., Mistick PBT v. Chao, 440 F.3d 503, 508-09 (D.C. Cir. 2006).

Moreover, the Supreme Court has affirmed at least one Veterans Court


44

decision that facially invalidated a VA regulation. Brown v. Gardner, 513

U.S. 115, 116-17 (1994).

At other points, the VA suggests that a “direct challenge” is one

brought by a veteran who has not yet obtained a ruling from the Board.

Br. 28; see id. at 15 (asserting that Ms. Wolfe should have “simply

followed the appeals process”). This version of the “direct challenge”

argument fails for three reasons.

First, and most importantly, the VA cites no statute requiring a

class representative to obtain a Board decision prior to bringing a class

action. Unlike some other federal programs that have jurisdictional

exhaustion requirements, see, e.g., 42 U.S.C. § 405(h) (Social Security);

id. § 1395ii (Medicare), exhaustion is not jurisdictional for veterans’

claims. Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998).

Second, requiring class representatives to exhaust the VA’s appeal

process would effectively nullify class action practice (which Petitioners

believe is the true goal of this appeal). As the Court has recognized, the

“average time from the filing a Notice of Disagreement to the issuance of

a [Board] decision is over five years.” Martin, 891 F.3d at 1341-42.

Veterans should be able to obtain class relief without losing “years of


45

their lives living in constant uncertainty, possibly in need of daily

necessities such as food and shelter, deprived of the very funds to which

they are later found to have been entitled.” Id. at 1350 (Moore, J.,

concurring). Indeed, many claims are extinguished when veterans pass

away still trying to navigate the VA’s “bureaucratic morass,” id., as

occurred to Mr. Staab.

Third, this Court recently reiterated that Congress passed the

Veterans’ Judicial Review Act of 1988 (“VJRA”) and created the Veterans

Court “‘for the express purpose of ensuring that veterans were treated

fairly by the Government and to see that all veterans entitled to benefits

received them.’” Taylor v. McDonough, --- F.4th ---, No. 2019-211, 2021

WL 2672307, at *7 (Fed. Cir. June 30, 2021) (quoting Barrett v.

Nicholson, 466 F.3d 1038, 1044 (Fed Cir. 2006)) (cleaned up). In doing so,

Congress left intact “common law adjudicatory tools.” Id. at *6. As this

Court held in Monk, one of the common-law tools that the VJRA

preserved was the ability of veterans to bring class actions to challenge

VA regulations. See 855 F.3d at 1320 (“we find no persuasive indication

that Congress intended to remove class action protection for veterans

when it enacted the VJRA”); id. at 1320 n.4 (legislative history “suggests


46

that Congress intended that the Veterans Court would have the

authority to maintain class actions” and that “‘most challenges to

regulations are class actions, involving large groups of beneficiaries or

potential beneficiaries’”) (quoting H.R. Rep. No. 100-963, pt. 1, at 41-42

(1988)).

In the decades prior to the VJRA, veterans were not required to

exhaust the VA’s appeal procedures prior to bringing class actions. See

generally Johnson v. Robison, 415 U.S. 361 (1974); Wayne State Univ. v.

Cleland, 590 F.2d 627 (6th Cir. 1978); Giusti-Bravo v. U.S. Veterans

Admin., 853 F. Supp. 34 (D.P.R. 1993); see also Nehmer v. U.S. Veterans’

Admin., 118 F.R.D. 113, 121 (N.D. Cal. 1987) (“The Court is not aware of

any statute mandating exhaustion . . . .”). Monk and Taylor teach that

Congress intended for such class actions to remain available through

petitions for mandamus under the All Writs Act.

5. The Writ Was Necessary To Correct A Clear Abuse Of Discretion.

The writ was separately justified by the extraordinary facts of this

case. The Supreme Court has stressed that mandamus is not “‘confined .

. . to an arbitrary or technical definition of ‘jurisdiction.’’” Cheney, 542

U.S. at 380 (quoting Will v. United States, 389 U.S. 90, 95 (1967)).


47

Mandamus is appropriate when an official’s “action is not mere error but

usurpation of power.” De Beers Consol. Mines, Ltd. v. United States, 325

U.S. 212, 217 (1945). See Bankers Life & Cas. Co. v. Holland, 346 U.S.

379, 382-83 (1953); Will, 389 U.S. at 95. Mandamus must be available to

correct an official’s “‘clear abuse of discretion.’” Cheney, 542 U.S. at 380.

This is such a case. As the Veterans Court put it, an “extraordinary

situation demands extraordinary relief.” Appx2. In the proceedings

below, the VA confessed to three different “regrettable errors.” Appx298,

412, 779. Beyond the confessed errors, the VA’s misconduct includes a

unilateral moratorium on claim processing, an interim final rule that

lacked good cause, a regulation that circumvented both the statute and

Staab, its refusal to pay veterans like Ms. Wolfe, and ongoing

misrepresentations. Given this extraordinary record, the Veterans Court

was well within its supervisory authority to issue mandamus. Cf. La Buy

v. Howes Leather Co., 352 U.S. 249, 258 (1957) (“there is an end of

patience”).

6. The Writ Did Not Interfere With The Jurisdiction Of Any Other Tribunal.

The VA alleges that the writ “seized” this Court’s jurisdiction under

38 U.S.C. § 502 and the Board’s jurisdiction under 38 U.S.C. § 7104(a).


48

Despite the substantial amount of ink spilt, see Br. 27-34, these are not

serious arguments.

[a] Section 502 states as follows:

An action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers is subject to judicial review. Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit. However, if such review is sought in connection with an appeal brought under the provisions of chapter 72 of this title, the provisions of that chapter shall apply rather than the provisions of chapter 7 of title 5.

38 U.S.C. § 502. Each sentence is important. The first states that the

VA’s publications in the Federal Register (see 5 U.S.C. 552(a)(1)) and its

rules (see 5 U.S.C. § 553) are subject to judicial review.

The second sentence incorporates the review provisions of the APA,

but specifies that this Court is the exclusive forum. Absent that

restriction, every district court would be a potential forum, 5 U.S.C.

§ 702, and that is the only sense in which § 502 is “exclusive.” See

Preminger v. Sec’y of Veterans Affairs, 632 F.3d 1345, 1352 (Fed. Cir.

2011) (absent § 502, “these suits would be brought under the APA in

another court”). As the Ninth Circuit has explained, Congress altered the

usual APA approach to prevent the possibility of circuit splits. See United


49

States v. Szabo, 760 F.3d 997, 1005 (9th Cir. 2014) (it was “Congress’s

intent ‘to avoid the possible disruption of VA benefit administration

which could arise from conflicting opinions on the same subject due to the

availability of review in the 12 Federal Circuits or the 94 Federal

Districts’”) (quoting H.R. Rep. No. 100-963, at 28 (1988)).

While the second sentence of § 502 does not address the relationship

between this Court and the Veterans Court, the third does. That sentence

states that “such review” (i.e., review of a VA rule) also can be “sought in

connection with an appeal brought under the provisions of chapter 72”

(i.e., in the Veterans Court). When that occurs, the provisions of chapter

72, including § 7252 and § 7261, control. In other words, § 502 recognizes

that regulatory challenges can and do occur in the Veterans Court.

Indeed, “review of regulations . . . in the Veterans Court under § 7252 . .

. . is common.” Wingard v. McDonald, 779 F.3d 1354, 1358 (Fed. Cir.

2015). Importantly, nothing in sections 502, 7252, or 7261 suggests that

the Veterans Court cannot review regulations as an exercise of

prospective jurisdiction or in a class action.

Finally, none of the cases cited by the VA actually supports the

conclusion that the Veterans Court cannot review a VA regulation


50

“absent a board decision.” Br. 31. Wingard dealt with a different

statutory provision that precludes the Veterans Court from reviewing the

schedule of ratings for disabilities. 779 F.3d at 1357. Preminger rejected

the government’s argument that this Court could not review the VA’s

denial of a rulemaking petition. 632 F.3d at 1353-54. Dacoron v. Brown,

affirmatively asserts that the Veterans Court “has authority to reach

constitutional issues in considering petitions for extraordinary writs.” 4

Vet. App. 115, 119 (1993).

In fact, one of the VA’s cases directly undercuts its position. The VA

cites American Legion v. Nicholson, but that case actually confirmed that

mandamus would be proper so long as a writ could lead to a Board

decision over which the court would have jurisdiction in the future.

21 Vet. App. 1, 7 (2007). As discussed above (supra 24-26) and again

immediately below, the writ remanded all claims to the VA for re-

adjudication. The VA retains appropriate discretion to deny each claim

on a different ground, as does the Board. As a result, the writ may well

lead to innumerable Board decisions over which the Veterans Court will

have jurisdiction in the future.


51

[b] There is no factual basis for the VA to assert that the Veterans

Court “decid[ed] the merits of Ms. Wolfe’s claim (and those of the class).”

Br. 33; see id. 13, 16, 26. The assertion relies on wordplay. Veterans

submit “claims” to the VA seeking “a specific benefit.” 38 C.F.R. § 3.1(p).

In this case, Ms. Wolfe submitted, and the VA denied, Claim # 752227.

See Appx110. When the VA asserts that the Veterans Court decided

Ms. Wolfe’s “claim,” however, the VA is not referring to Claim 752227.

Rather, the VA is using the word “claim” to refer to the regulatory

challenge that Ms. Wolfe advanced on behalf of tens of thousands of

similarly situated veterans.17

The difference is critical. The VA might have had a valid objection

if the Veterans Court had granted Claim 752227 or ordered the VA to pay

Ms. Wolfe a specific sum. Such orders would be similar to the transfer

that the Supreme Court found impermissible in Platt, 376 U.S. at 245.

However, the writ below did no such thing. By invalidating the IFR, the

writ simply determined the appropriate criteria and remanded all claims

17 Indeed, the VA’s brief drops the charade at one point. See Br. at 21 (asserting that the court below addressed “the merits of Ms. Wolfe’s regulatory challenge”) (emphasis added).


52

to the VA for re-adjudication, which the Supreme Court held was

appropriate in Platt, 376 U.S. at 245.

Finally, the fact that the Board ruled in favor of Ms. Wolfe, see

Br. 34, proves absolutely nothing. The Board followed the decision below

to conclude that coinsurance was reimbursable. See Appx726. Had there

been a different ground to deny payment, the Board could, and

presumably would, have used it to deny Ms. Wolfe’s claim. See Appx725

(“The agency . . . has not contended, and the record does not otherwise

reflect, that the Veteran did not meet the statutory and regulatory

requirements . . . .”).

B. The Class Was Clearly Entitled To A Writ

The class’s entitlement to a writ turns on whether the IFR is

consistent with the statute. See Appx28. The VA accepts that framing on

appeal, but argues that the Veterans Court should have deferred to the

IFR as a “reasonable” interpretation of the statute “in light of the VA’s

explicit and broad authority” to establish regulations. Br. 45. For several

reasons, the VA is not entitled to any deference.

First, courts defer to agencies only where Congress delegated

authority and the interpretation in question “was promulgated in the


53

exercise of that authority.” United States v. Mead Corp., 533 U.S. 218,

226-27 (2001). Here, Congress conditioned the VA’s rulemaking authority

on compliance with the notice-and-comment requirements of the APA.

See 38 U.S.C. § 501(d). The IFR did not go through notice and comment

and, because there was no good cause to skip notice and comment, the

IFR violated the APA. See, e.g., Mid Continent Nail Corp. v. United

States, 846 F.3d 1364, 1380-81 (Fed. Cir. 2017). In light of the violation,

VA is not entitled to any deference with respect to the IFR. See, e.g.,

Gonzales v. Oregon, 546 U.S. 243, 258-59 (2006) (no deference where the

Attorney General had not “exercised” his delegated rulemaking authority

in the “specific ways” required by Congress).

Second, and likely because the public had no advance opportunity

to comment, the Federal Register notice announcing the IFR contained

no discussion of the issues in this case. The fact that the VA invented all

of its statutory arguments during this litigation is an additional reason

not to defer. See GHS HMO, Inc. v. United States, 536 F.3d 1293, 1300

(Fed. Cir. 2008) (no deference where the agency’s arguments did not

“appear in the Federal Register where [it] justified the adoption of this

regulation”); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213


54

(1988) (“Deference to what appears to be nothing more than an agency’s

convenient litigating position would be entirely inappropriate.”); Parker

v. OPM, 974 F.2d 164, 166 (Fed. Cir. 1992) (“[P]ost-hoc rationalizations

will not create a statutory interpretation deserving of deference.”).

Third, because the statute is clear, the validity of the IFR should be

resolved at Chevron step one where the agency receives no deference. See

SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018). Moreover, the first

step requires that courts apply all the traditional tools of statutory

interpretation. Id. One of those tools is the canon against surplusage.

Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 644-45 (D.C. Cir.

2000). The fundamental problem with the IFR is that it prevents the VA

from reimbursing any out-of-pocket costs incurred by insured veterans.

As a result, the IFR is ultra vires because it renders the statutory

command that the VA reimburse insured veterans for “the amount by

which the costs for the emergency treatment exceed the amount payable

or paid by the [insurer],” 38 U.S.C. § 1725(c)(4)(A), null and void.

There is no real dispute that the IFR impermissibly rendered

§ 1725(c)(4)(A) surplusage. The VA has not identified a single veteran

who obtained reimbursement under § 1725(c)(4)(A) while the IFR was in


55

force. Indeed, the VA stated that the total amount reimbursed under

§ 1725(c)(4)(A) was just $12.00 – and never identified what that amount

was for. Appx343.

The VA cannot identify even a theoretical way for an insured

veteran to obtain reimbursement under § 1725(c)(4)(A). Below, the VA

argued that “balance billing” was a possibility. The Veterans Court below

rightly rejected that suggestion, Appx30-31, and the VA no longer

pursues it on appeal. Instead, the VA now argues for the first time that

“annual or lifetime limits on covered costs” and “short-term limited

duration” (“STLD”) insurance plans are reasons why the IFR does not

render § 1725(c)(4)(A) surplusage. Br. 47.

The VA clearly waived both arguments by failing to present them

to the Veterans Court in any of its five briefs below. See Boggs v. West,

188 F.3d 1335, 1337-38 (Fed. Cir. 1999) (“As a general rule, an appellate

court will not hear on appeal issues that were not clearly raised in the

proceedings below.”). It is disingenuous for the VA to claim that the

analysis below was “incomplete,” or to assign “error” to the Veterans

Court, Br. 46-47, when the VA failed to raise either of these points in any

of the five briefs it filed below.


56

The arguments also fail on their own terms. When lifetime or

annual limits were lawful,18 they worked by increasing the insured’s

coinsurance responsibility to 100% for any amounts over the cap. The IFR

would have banned reimbursement of a veteran’s liability above the cap

just like any other coinsurance payment. Similarly, STLD plans are not

different from “normal” insurance in any relevant way. Where STLD

plans do not cover a service, veterans are “personally liable for . . . all of

the costs.” Br. 47. The VA has provided reimbursement in that situation,

since before the ECFA. See supra 6-7. Where STLD plans provide only

partial coverage and leave veterans “personally liable for some . . . of the

costs,” Br. 47, the IFR would apply just as it does to “normal” insurance

plans. Simply put, if the IFR is allowed to stand, the VA will never have

to make a payment under 38 U.S.C. § 1725(c)(4)(A), meaning that

Congress’s goal in passing the ECFA will be defeated.

The VA responds that the IFR must ban all forms of cost sharing

(and thus prohibit all possible reimbursement) to give meaning to the

18 The VA concedes that lifetime and annual limits were banned by the Affordable Care Act (“ACA”) on March 2, 2010. Br. 47 n.16. It is plainly unreasonable for the VA to imply that Congress’s main goal in passing 38 U.S.C. § 1725(a)(C)(4)(A) on February 1, 2010 was to address practices that it banned just 49 days later. Indeed, the ACA had already passed the Senate when Congress enacted the ECFA.


57

phrase “or similar payments” in 38 U.S.C. § 1725(a)(C)(4)(D). This, too,

is meritless. The VA conceded below that the statute “affords VA the

regulatory flexibility to align this provision’s scope with evolving health

insurance practice and terminology.” Appx30. Even on appeal, the VA

concedes, “Congress baked this flexibility into the statutory text.” Br. 48.

Such concessions are fatal—there is no requirement that the phrase “or

similar payment” have an additional meaning.19

Another tool that the Court should apply at step one is the “pro-

veteran canon.” Procopio v. Wilkie, 913 F.3d 1371, 1383 (Fed. Cir. 2019)

(O’Malley, J., concurring). Below, the VA expressly argued that Congress

simultaneously gave with one hand and took away with the other. See

Appx412-13 (“Congress removed the partial health insurance bar but

simultaneously erected a bar that covers nearly all of the same ground”).

Congress generally does not “bait and switch” when it passes laws. See,

e.g., Iwata v. Intel Corp., 349 F. Supp. 2d 135, 147 (D. Mass. 2004) (“It

seems unlikely that Congress intended to create a bait-and-switch, where

an individual is only covered by the statute until the moment when she

19 The VA’s comment that the IFR also preserves this flexibility, see Br. 48 (“the same can be said for VA’s regulation”), has nothing to do with whether the flexibility is enough to give meaning to the statutory phrase.


58

actually needs its protection.”). It definitely does not do so when creating

veteran benefits. See Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir.

2004) (“[T]he veterans benefit system is designed to award entitlements

to a special class of citizens, those who risked harm to serve and defend

their country. This entire scheme is imbued with special beneficence from

a grateful sovereign.”) (internal quotation marks omitted).

Finally, even at Chevron step two, the IFR is not a reasonable

construction of the statute because coinsurance and deductibles are not

reasonably “similar” to copayments. The Veterans Court rightly found

that, as a factual matter, copayments are fixed and small, often $100 or

less. Appx29-30. In contrast, deductibles are fixed but much larger, often

thousands of dollars. Appx30 Coinsurance is neither fixed nor small, and

can saddle a veteran with tens of thousands of dollars per visit to the

emergency room. Id. Thus, intuitively and empirically, coinsurance and

deductibles are not similar to copayments.

The VA does not challenge these facts. Instead, the VA responds

that the three categories of expenses must be all similar because they are

all forms of cost sharing. Br. 45. In particular, the VA asserts that the

Court should look to how Congress subsequently defined “cost-sharing”


59

in the ACA.20 Br. 45-46. The VA’s quotation of the statute is incomplete.

The ACA actually defined the term “cost-sharing” to include “deductibles,

coinsurance, copayments and any other expenditure required of an

insured individual which is a qualified medical expense . . . with respect

to essential health benefits covered by the plan.” 42 U.S.C.

§ 18022(e)(3)(A)(i)-(ii) (emphasis added). The full quotation thus confirms

that the VA’s interpretation of 38 U.S.C. § 1725(c)(4)(D) is unreasonable

and leads to surplusage. All out-of-pocket expenditures required of an

insured veteran are cost shares under the ACA definition. If the VA can

prohibit reimbursement of all forms of “cost sharing,” then it will have

succeeded in prohibiting all reimbursement under § 1725(c)(4)(A).

C. The Class Lacked An Alternative Remedy

The writ entered several forms of relief that are only available on a

class basis. This includes an order directing the VA to stop

misrepresenting the law, an order directing the VA to correct such

misrepresentations, and an order directing the VA to re-adjudicate all

20 The VA inconsistently argues that the Court should consider the definition of cost sharing in the ACA, Br. 46, but must ignore the fact that the ACA banned lifetime limits, id. at 47 n.16.


60

affected claims. Appx36. None of this relief would be available through

Ms. Wolfe’s individual appeal.

The VA completely ignores the class nature of the relief entered

below. Instead, it raises the general point that mandamus should not be

used as a substitute for the normal appellate process. Br. 35. The VA

relies on Lamb v. Principi, 284 F.3d 1378 (Fed. Cir. 2002), to suggest that

an individual appeal before the Board is always a sufficient remedy.

Br. 36. The reliance is misplaced. Lamb was “an ordinary case in which

a veteran who has been awarded disability benefits seeks an earlier date

for their commencement.” 284 F.3d at 1382. The petitioner in Lamb had

not sought class relief, had not challenged the criteria that the VA was

using to adjudicate a class of claims, and had not shown any of the

extraordinary circumstances that exist in this case.

More broadly, the principle that a petitioner should exhaust the

administrative process rather than seek mandamus is far from absolute.

For instance, the VA relies (Br. 40) on Ledford, where this Court held

that “the doctrine of exhaustion of administrative remedies is not


61

jurisdictional.” 136 F.3d at 780.21 Exhaustion is an “intensely practical”

consideration and should only be required when doing do “would further

the doctrine’s underlying policies.” Id.

The VA also relies (Br. 41) on Bowen v. City of New York, where the

Supreme Court found exhaustion was not consistent with the policies

underlying exhaustion. The Supreme Court explained:

[T]he relief afforded by the [court below] is fully consistent with the policies underlying exhaustion. The court did not order that class members be paid benefits. Nor does its decision in any way interfere with the agency's role as the ultimate determiner of eligibility under the relevant statutes and regulations. Indeed, by ordering simply that the claims be reopened at the administrative level, the [court] showed proper respect for the administrative process.

476 U.S. 467, 485 (1986). Just so here.

Indeed, exhaustion gives way to multiple exceptions. See McCarthy

v. Madigan, 503 U.S. 146-149 (1992). The Veterans Court relied on the

21 Because exhaustion is not jurisdictional, the VA errs in relying on either Heckler v. Ringer, 466 U.S. 602 (1984) or Lifestar Ambulance Service Inc. v. United States, 365 F.3d 1293 (11th Cir. 2004). See Br. 38, 41. Both cases arose under Medicare where exhaustion is jurisdictional because the Social Security Act affirmatively strips away district court jurisdiction unless the administrative pathway has been exhausted. See Ringer, 466 U.S. at 614-15 (discussing the third sentence of 42 U.S.C. § 405(h)); Lifestar, 365 F.3d at 1295-96.


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principle that exhaustion is not required when there is “‘doubt as to

whether the agency was empowered to grant effective relief.’” Id. at 147

(quoting Gibson v. Berryhill, 411 U. S. 564, 575, n.14 (1973)). The court

did not, as the VA puts it, “consider[] Ms. Wolfe’s chance of success.”

Br. 38. Rather, the Veterans Court found that exhaustion would be futile

because the IFR required the Board to deny all of the claims of the class

members. Appx33.22

Unreasonable delay also is sufficient to excuse exhaustion.

McCarthy, 503 U.S. at 146-47. The VA claims delay is never relevant to

mandamus, see Br. 39 n.12, but its cases involved unremarkable district

court orders and the time it would take to proceed to final judgment. See,

e.g., Bankers Life & Cas. Co., 346 U.S. at 383 (transfer of venue); Roche,

319 U.S. at 31 (motion to dismiss an indictment). Even in that setting,

mandamus is proper to avoid delay in resolving important issues. See

Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964) (discovery order raising

“new and important problems”); In re Google LLC, 949 F.3d 1338, 1341

22 The VA’s citation (Br. 38) to Clinton v. Goldsmith, 526 U.S. 529 (1999), is inapt. In that case, the Court vacated an injunction as outside the tribunal’s statutory jurisdiction and, therefore, not authorized by the All Writs Act. Id. at 540. The Court had no cause to consider the petitioner’s “chance of success” and the opinion does not indicate that any party raised that issue.


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(Fed. Cir. 2020) (“basic” and “undecided” questions regarding venue). It

follows a fortiori that mandamus was appropriate here, where it

accelerated by more than five years the resolution of an important

regulatory challenge affecting up to 80% of all veterans.

II. THE VETERANS COURT DID NOT ABUSE ITS DISCRETION BY CERTIFYING THE CLASS.

The VA does not dispute that the Veteran Courts appropriately

applied the Rule 23 requirements and appropriately certified a class and

instead argues that the class was too broad. See Br. at 50-57. In

particular, the Secretary argues that three groups of veterans should not

have been included in the class. As explained below, none of the VA’s

challenges has merit.

A. Equitable Tolling Justifies The Court’s Decision to Order Re-adjudication Of All Claims.

Citing Skaar v. Wilkie, 32 Vet. App. 156 (2019), the VA first argues

that the Veterans Court lacked jurisdiction over class members who did

not timely appeal their denials. Br. 52. The VA waived this argument by

failing to raise it below. See Boggs, 188 F.3d at 1337-38.

Even if not waived, the argument still fails. The applicable

deadlines are not jurisdictional. See generally Henderson v. Shinseki, 562

U.S. 428 (2011). Courts routinely equitably toll appeal periods for class


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members whose claims would have otherwise expired during the

pendency of a class action. Bright v. U.S., 603 F.3d 1273, 1278-81 (Fed.

Cir. 2010). The Veterans Court’s decision to extend equitable tolling to

all affected veterans who did not appeal within the prescribed period is

warranted in light of these longstanding principles as well as the

extraordinary circumstances present, including the factual finding below

that the VA’s misrepresentations had deterred veterans from pursuing

their appeals. See Skaar, 32 Vet. App. 156, 204 (2019) (Schoelen, J.,

concurring in part) (“[W]hen analyzing whether equitable tolling is

warranted . . . in a class context, two questions are presented: (1) whether

equitable tolling is consistent with Congress’ intent, and (2) whether

tolling is appropriate on these facts.”) (internal quotations; and citation

omitted).

None of the cases cited by the VA requires a different result. For

instance, Skaar involved none of the extraordinary circumstances

identified below. Indeed, the panel in that case specifically found that

Mr. Skaar had not even alleged (let alone established) that the proposed

class members “were precluded from timely filing appeals to this Court


65

for any reason other than VA’s historical practice in adjudicating claims.”

Id. at 187.23

B. Undecided Claims Are Within The Prospective Jurisdiction Of The Veterans Court.

The VA next argues that the Veterans Court lacks jurisdiction over

claims that the Board has not yet decided. Br. 54. The VA waived this

argument as well. See Boggs, 188 F.3d at 1337-38.

Regardless, for reasons already discussed, such claims are within

the court’s prospective jurisdiction. See supra 30-32 (discussing

prospective jurisdiction under Tennant and Mylan Labs). Indeed, the VA

concedes that, under Monk, the Veterans Court “may properly certify a

class that includes claims still awaiting a board decision.” Br. at 54. The

VA argues that this power is limited to compelling agency action that has

been unreasonable delayed or unlawfully withheld, see id., but the

suggestion is pure ipse dixit. Once prospective jurisdiction exists, the

Veterans Court may exercise all of the powers enumerated in 38 U.S.C.

§ 7261, not just the power described in § 7261(a)(2). See supra 42-43.

23 The VA also cites to Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002), and Jordan v. Nicholson, 401 F.3d 1296, 1299 (Fed. Cir. 2005), but neither is on point. Neither case even discusses equitable tolling, which remains a viable exception to the doctrine of finality.


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C. The Class Seeks Common Relief For A Common Injury.

Finally, the VA argues that the class should not include claims for

reimbursement of deductibles, because Ms. Wolfe herself was denied

reimbursement only for coinsurance payments. Br. 55-57. This argument

is based on a misunderstanding of the class. The class challenges the

validity of the IFR on its face. Claimants-Appellees did not ask the

Veterans Court to review any individual claim, but to invalidate the IFR

and order the VA to stop misrepresenting the law to claimants and to re-

adjudicate all affected claims. Each member of the class was injured by

the IFR, and each member’s injury was properly redressed by the writ.

Separately, the VA’s suggestion to limit the class to claims seeking

reimbursement of only coinsurance is unworkable. Many class members

submitted claims seeking reimbursement of both deductible and

coinsurance payments. The VA’s suggestion will lead to a convoluted,

disastrous result wherein some veterans are both in and out of the class.

This will prevent them from being made whole and goes against the

notion that class actions should “ensure that like veterans are treated

alike.” Monk, 855 F.3d at 1321.


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CONCLUSION

For the foregoing reasons, Claimants-Appellees respectfully

request that the Court affirm the decision issued by the Veterans Court.

Respectfully submitted,

Dated: July 13, 2021 /s/ Mark B. Blocker Mark B. Blocker SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 (312) 853-7000 Counsel for Claimants-Appellees


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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) and

Federal Circuit Rule 32(b)(1), claimants-appellee’s counsel certifies that

this brief complies with the Court’s type-volume limitation rules.

According to the word count calculated by the word processing system

with which this brief was prepared, the brief contains a total of 13,241

words.

Dated: July 13, 2021 /s/ Mark B. Blocker

Mark B. Blocker SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 (312) 853-7000 Counsel for Claimants-Appellees


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CERTIFICATE OF SERVICE

I hereby certify that on July 13, 2021, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of

Appeals for the Federal Circuit using the Court’s CM/ECF system,

which will send notifications to all counsel registered to receive

electronic notices.

/s/ Mark B. Blocker

Mark B. Blocker SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 (312) 853-7000 Counsel for Claimants-Appellees

ACTIVE 270269597
